JohnSmith

I have spoke with ACAS and they aren't too sure

But basically company is now gone into adminstration

The paperwork states the following, BUT nothing has been said to us at all


4 EMPLOYEES

Neither the Company nor the Administrators shall haveany liability to the Buyer in respect of any claims liabilities or obligationsto which the Buyer may become subject in respect of any of the Employeeswhether arising under the Transfer of Undertakings (Protection of Employment)Regulations 2006 or otherwise

Prior to this it has a small bit that states


Employeesallemployees of the Company immediately prior to the Completion Date;

But no completion date

speedking

#25 here the first time round.

If you are transferred from oldco to newco then your employment conditions are protected by TUPE.

If not then you have been made redundant by oldco.

All that extract says is that oldco is denying any liability for any expenses incurred by newco, which is fair enough. If newco agreed to give everyone a better car then you wouldn't expect oldco to pay for them. Newco should factor any liabilities into the price it pays for oldco.

You will need a new contract of employment before you start working for newco.

JohnSmith

Thanks Speedking I read your post first time round

Here are how things stand

We have been told nothing, the boss assumes we all want to work for newco and hasn't asked or told us

How do we know if we have been transferred to the newco if we are not being told anything ?

That is my main question really

Devildog

Thats not really it mate

What that clause is doing is preventing newco claiming against the administrators personally or claiming against oldco in the event that there actually is a TUPE transfer.

Its a common enough clause in such agreements, and its used to ensure that newco is liable ofr all the employee arrears and continuity of employment in the event that there is deemed to be a TUPE transfer.

So to answer the OP's question, it doesn't confiirm or deny a TUPE transfer, its just covers the administrators and the company in administration in the event that there is.

Its the kind of clause you see in agreements where the seller (the company in admin via its administrators) suspects there is a TUPE transfer but the buyer does not want to accept that in black and white in the sale and purchase agreement.

What needs to happen now is that the administrators may well lodge claims on the employees behalf with the redundancy payments service - question to John Smith - have you filled out an RP 1 form? - and let the RPS decide if it thinks its a TUPE transfer or not

davegtt

You've been told nothing, I understand that, but it begs the question - Why dont you ask them?

JohnSmith

Thanks again DD

The Boss, I know definitely does NOT want TUPE so he can get everyone to claim their wages back from 2 months ago, but he is also aware that he may have no choice in the matter

No we have not filled out any form or signed any form

If I stay with the company (apart from half an hour in the office in the morning) I will be out on site for at least the next 6 weeks or so along with a few other guys so we will not be around to sign any paperwork

I do have another question though DD

If the company officially goes into administration and I walk (or made redundant) then all the equipment and tools I have currently at home, who do they then belong to? who do I hand them back to, the employer or the administrators

and also when officially in administration will someone come to the office and base themselves there or just leave us all to it and do everything by email etc ?

Bearing in mind if the administrators do come in tomorrow the only person with any authority is the MD who is now away for 2 weeks hiding out of the country LOL

JohnSmith

Because when he spoke to us he told us he was not going to TUPE us across and was very adamant on that point, and that is the only discussion anyone has had with him regarding this

Apart from the fact he doesnt actually come to work most of the time

Devildog

Sorry mate, missed this

Ok - I understand you don't want to be TUPE'd to newco and the reasons why. All you need to do is get your boss to confirm in writing to you on newco letterhead that you have not been subject to a TUPE transfer to newco. That way he cannot try and hold you to your previous terms and conditions under your contract with oldco and you are free to go do what you want.

The administrators of oldco won't care what you do as old co is in breach of your contract and therefore oldco can't make any claims against you. To be honest they won't care anyway.

As for the tools and equipment, until you see evidence to the contrary (ie a signed sale and purchase agreement selling them to newco) they remain the propoerty of oldco. If they haven't been sold to newco (or are not going to be) and you want to keep them for your own use, you should make the administrators a nominal offer or invite them to come and collect. Chances are they will do you a decent deal to avoid collection and disposal costs.

If they have been sold to newco, again, invite newco to come and collect (assuming you're not working for newco which I know you don't intend to) You've got zero obligation to go out of your way to return anything.

Lastly - once appointed the administrators should visit the office

JohnSmith

Cheers again DD

I know there is no way my boss will write anything on paper even more so if he knows or suspects I will do one LOL. he will be incredibly pissed off if he knows I am or want to leave

There is very little kit that I have that is being sold to newco as part of the sale, this is because he has falsfified the asset list to make the value a lot lower than what it is so he can buy the company back for much less than he would get

The Administrators don't care, they aren't checking the assets and are quite happy at the value HE has put on them

I believe he is going to pay for the oldco over the next 6 months starting with a 5,000 payment 1 minute past the appointment time

They have missed filing in court today and it will be done tuesday now apparently, but the boss is still out of the country in Greece as the stress of not being in work since august has been too much for him

Good to know I have no obligation to go out of my way to return anything

I spoke to DBIS today and they said they couldnt advise or tell me anything as we are still not in adminstration at least not according to the insolvency register or Companies House

Devildog

Ok, get the administrators to advise if you have been tupe'd over or not. They should be able to give you something.

If not, just leave. If he says you can't then he's admitting a transfer and will have to accept evereyone has tupe'd across, so its a lose/lose for him.

I'd just hang onto the kit you've got until someone asks for it back.

JohnSmith

Good idea

He won't be able to stop me anyway as he is still out of the country

I believe we didn't go into admin on thursday because he wasn't available to confirm the money will be transferred on appointment

So subject to him being gotten hold of it will happen tuesday

I know if I walk on tuesday then I won't get paid for the 4 days worked last week, but then I guess I could keep hold of the equipment I have until he pays me

One other question though

When it officially goes into administration should we be notified straight away (even if its pre pack) and we are working out on a customer site ?

Should we still continue to use the company name, email etc again pre pack scenario

JohnSmith

Oh the administrators said TUPE is nothing to do with them and they are not getting involved, the only thing they have done is categorically stated in writing that he must seek his own independant legal advice regarding TUPE

Devildog

Yeh, we do that lol

If it goes into admin on Tuesday, yes, you should be notified as soon as is practically possible, irrespective of wheter its a pre pack admin or not. As for company name, that will depend. Often in a pre pack there will be a name swap between old co and newco. But again, you should be notified.

In terms of emails, etc, if there is no name swap, the administrators will give you guidance. Generally speaking, we would have a footer added to the emails to say that the company was in administration, especially in trading on in admin situations.

Its possible that the administrators will simply shut down the mail server.

Basically its dependent on the circumstances of the particular case, but the administrators will advise.

JohnSmith

I think the boss just assumes that we all work for newco now anyway so probably wont tell us we are in admin

he is buying the company but it will take him 6 monthly payments before completion and he has paid the 500 quid to the solicitors regarding the use of the name

Could I be really crafty and as soon as it is listed on companies house as insolvent, register the name for myself

Will the administrators require access to the mail server etc ?

As I am the only person who has access to it and I am out on site

I doubt it will happen on tuesday as I don't think he will be back in the country in time

JohnSmith

Well it didn't happen yesterday or today

DevilDog did you get my PM's (sorry for all the questions but DBIS cannot help or wont help until in admin)